From the time the first Kenya case was launched in 2009, the British government had been maneuvering to avoid a legal contest. First, the FCO argued that modern-day Britain was not responsible for the crimes of its colonial predecessors. Later, the FCO claimed simply that too much time had elapsed for a fair trial.
The judge overseeing the case struck down the FCO’s objections in 2011 and 2012, and the case went ahead. In part, this was because the Kenya Emergency occurred at the very end of Britain’s imperial rule, meaning there were still living survivors.
The Kenya case was also given a game-changing boost in 2011 when, under pressure from historians, the FCO was forced to admit that it was unlawfully withholding historic files on Kenya, in addition to thousands of documents from its 37 former colonies. The secret documents reinforced what historians already knew: that the British-led counter-insurgency had been merciless. One interrogation tactic, detailed in the papers, involved stepping on a detainee’s throat while stuffing mud into his mouth.
They also revealed high-level efforts to hush-up what was happening in Kenya. “If we are going to sin,” Kenyan attorney general Eric Griffiths-Jones wrote in a 1957 memorandum, “we must sin quietly.”
Simon Myerson QC, the barrister representing the 40,000 new claimants, says that evidence from the secret documents allowed his case to move forward. But this second trial is very different from the first. In the first case, the four test claimants had all suffered serious physical abuse: torture, sexual assault, and castration. In the current case, some of the claimants are suing for property destruction and “an interference with their right to education,” lesser crimes that are difficult to measure and prove so long after the fact.
The process of signing up claimants has also changed. The 5,000 Kenyans who received compensation in the first settlement had all been members of Mau Mau veterans associations before the possibility of a lawsuit emerged, and all were vetted by the Kenya Human Rights Commission.
Now, things are more chaotic. In the wake of the multi-million dollar settlement, a handful of British personal injury firms — some of them small outfits with no experience in Africa — began advertising for clients in Kenya. They dispatched lawyers to comb the countryside, signing up thousands of purported Mau Mau claimants. Some lawyers designed evidence-collection techniques on the fly, and didn’t always keep records of how and when they had gathered evidence.
Kenyan media took note. “Lawyers locked in epic battle for Mau Mau billions as old age claims more survivors,” read one headline in Daily Nation. “The scramble for Mau Mau proceeds,” read another.
In the months ahead, lawyers for the claimants must prove not only that their 40,000 clients were victimized, but also that Britain was responsible. This is not a straightforward task. On the ground, it was often Kenyan police and army units who carried out counter-insurgency operations. Also, the colonial administration in Nairobi had some autonomy from the government in London.